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Super supplement does not help vitamin supplier outgrow genericness

Nordic Naturals (“Nordic”) specializes in nutritional supplements made from fish oil, which contains DHA (docashexaeonic acid), an omega-3 fatty acid that assists in brain development. Nordic filed an application to register CHILDREN’S DHA in connection with nutritional supplements containing DHA for children. The examining attorney rejected the mark as generic, or in the alternative, as lacking acquired distinctiveness. The Board affirmed, finding that dictionary definitions and third-party uses of the term established that the term is used generically by parents and adults who purchase nutritional supplements containing DHA for children. Although Nordic has achieved commercial success, the Board found that CHILDREN’S DHA does not identify Nordic as a source. Thus, the mark had not acquired distinctiveness.

On appeal to the Federal Circuit, the court found the evidence supported the TTAB finding that the relevant public primarily uses “children’s DHA” generically to refer to DHA products for children.

Nordic also argued that while “children’s DHA supplement” may be descriptive, CHILDREN’S DHA by itself is not descriptive. Nordic claimed that its commercial success results from the consumer’s ability to identify Nordic as the source of CHILDREN’S DHA. Nordic provided declarations from retailers, examples of its own advertising, and third-party uses of “children’s DHA” which refer to Nordic ‘s products. It argued that since there was a “mixture of usages” of the mark, it could not be generic.

However, the Federal Circuit found that the record did not establish that there was a mixture of usages of “children’s DHA” among the relevant public. The third-party references used the term to describe the products, not to refer to Nordic as the source. Further, the court found that the declarations did not demonstrate that the public uses the term to identify Nordic since the declarations were only from retailers and not the relevant public.

The Federal Circuit recognized that Nordic may have been the first to use “children’s DHA” in the market. However, since the term is used by the public to refer to DHA products for children, Nordic could not claim exclusive use of the term.

Compare jurisdictions: Litigation: Enforcement of Foreign Judgments

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